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ELCDismissedELC Petition No. 11 of 2019· [2020] KEELC 3982 (KLR)

Daniel Kenduiywo & 135 others v Cabinet Secretary of Ministry of Defence & 2 others [2020] KEELC 3982 (KLR)

Environment and Land Court
18 November 2020
2,224 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret struck out landowners' attempt to undo a consent consolidation of their case, warning that second thoughts are not grounds for review.

What this practically means

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Executive summary

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The Petitioners in ELC Petition No. 11 of 2019 moved the court by a Notice of Motion dated 3rd March, 2020 seeking review of the ruling of 6th November, 2019 which consolidated their petition with ELC No. 23 of 2019 and ELC No. 78 of 2019, enjoining them as Defendants, so as to allow their petition to be heard independently. They argued they would lose claims in adverse possession and compensation for compulsory acquisition, and invoked Article 50, Article 162(2), Section 13(1) of the Environment and Land Court Act, and Section 80 of the Civil Procedure Act with Order 45 of the Civil Procedure Rules. The 1st Respondent and 3rd Respondent opposed, contending the enjoinment was by consent, that no conditions for review were met, and that the application was defective and designed to delay. The court framed two issues: whether sufficient reasons for review were established, and costs. It found the consolidation was supported by all counsel including the Petitioners', with no fraud, mistake, misrepresentation or coercion alleged; no error on the face of the record or new evidence was shown; and the petition itself contained no adverse possession prayer, its prayers being declarations of ownership, invalidity of the 1979 compulsory acquisition and prerogative orders. The court further found the Motion unsigned and therefore incompetent, wrongly filed in the petition file rather than ELC No. 23 of 2019, and unserved on parties in the consolidated suits. The Motion was struck out with costs to the Respondents.

Key legal issues

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01

Whether sufficient reasons existed to review the consolidation order of 6th November, 2019

Holding

No sufficient reason was established; the enjoinment was by consent with no fraud, mistake or coercion, no error on the face of the record and no new evidence, and the petition contained no adverse possession claim.

Reasoning

The court traced the record showing all counsel, including the Petitioners', supported consolidation on 22nd October, 2019. The Petitioners' claimed prejudice to an adverse possession claim was contradicted by the petition's own prayers, which sought declarations on ownership, that the 1979 compulsory acquisition was void, and prerogative orders. Independent hearing would double costs and time. The application was therefore an abuse of process aimed at delay.

p. 3
02

Whether the unsigned Motion was a competent application

Holding

The Motion was unsigned by the advocate both at the signature part and the 'drawn & filed by' part, rendering it incompetent and liable to be struck out.

Reasoning

The court noted the Motion bore the advocate's name but no signature at the designated parts. Without signature there was no competent application for review before the court, an independent ground for striking it out regardless of merit.

p. 3
03

Whether the application was properly before the court given non-service on parties to the consolidated suits

Holding

The Motion should have been filed in Eldoret ELC No. 23 of 2019 and served on all parties in the three matters; parties in the other two suits filed no replies or submissions, indicating non-service.

Reasoning

The consolidation order directed that all future filings take place in ELC No. 23 of 2019. The review application was filed in the petition file without service on the parties in the two consolidated suits who were involved in the proceedings leading to the ruling under review. This was a further procedural defect.

p. 3

Legal principles established

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  • Sufficient reason for review is not established by a party's change of mind about a consent consolidation order, absent fraud, mistake, misrepresentation, coercion, error on the face of the record or new evidence.

Court orders

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  1. 1.The Petitioners' unsigned Motion dated 3rd March, 2020 and filed on 4th March, 2020 is struck out
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 162(2)
  • Environment and Land Court ActSection 13(1)
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45

Cases cited (6)

  • Pancras T. Swai Vs Kenya Breweries Ltd
    [2014] eKLR
  • Equity Bank Vs West Link MbO Limited
    Civil Application No. 78 of 2011, [2013] eKLR
  • National Union of Water and Sewerage Employees & 3 Others Vs Nairobi Water and Sewerage Company Limited
    [2018] eKLR
  • Stephen Wanyoike Kinuthia (Suing on behalf of John Kinuthia Marega (Deceased) Vs Kariuki Marega & Another
    [2018] eKLR
  • Abdulkadir A. Khalif Vs The Principal Secretary, Ministry of Lands and Physical Planning and Others
    High Court Petition No. 497 of 2017
  • Stephen Gathua Kimani Vs Nancy Wanjira t/a Providence Auctioneers
    [2016] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 13(1) of the Environment and Land Court Act; Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act (review)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Daniel Kenduiywo & 135 others v Cabinet Secretary of Ministry of Defence & 2 others [2020] KEELC 3982 (KLR)", Case Analysis (2020). ELC Petition No. 11 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3982/eng@2020-11-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.